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The high cost of incivility in the legal profession

From day one, law schools stress the importance of budding lawyers' personal reputations. They counsel their students to act professionally and to treat professors and classmates—their future colleagues—with respect and civility.

After graduating, this theme of attorney civility continues through states' bar character assessments and admission requirements, namely professionalism or ethics courses, which are now mandatory in many jurisdictions.

For California attorneys in particular, the theme remains front and center when new lawyers take the oath upon admission to the bar. In 2014, the California Supreme Court announced adoption of Rule 9.4 of the California Rules of Court regarding the attorney oath, which now includes the following statement: "As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity." This addition was the first major modification since the oath was codified in 1872—a testament to the importance that the bar places on attorney professionalism and civility. Prior to the amendment to the attorney oath, California also adopted guidelines for attorney civility titled, "California Attorney Guidelines of Civility and Professionalism." These guidelines complement codes of professionalism adopted by bar associations across the state. The guidelines state that "[a]s officers of the court with responsibilities to the administration of justice, attorneys have an obligation to be professional with clients, other parties and counsel, the courts and the public. This obligation includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy and cooperation, all of which are essential to the fair administration of justice and conflict resolution."

Conduct unbecoming a member of the bar

The changes implemented by California are a direct response to both the perception and, in some cases, the reality that attorneys are not behaving professionally in the conduct of their cases. Judges and bar associations across the country are quickly losing patience with uncivil attorneys.

In one famous case of crude conduct, a Texas attorney defended a deposition not with legal acumen but with abusive and obstructionist language, including telling opposing counsel: "You can ask some questions but get off of that. I'm tired of you. You could gag a maggot off a meat wagon." Paramount Communications v. QVC Network, 637 A.2d 34 (Del. 1994). Needless to say, the Delaware Supreme Court was not amused. Indeed, the court raised the issue of the attorney's conduct sua sponte because it reflected "an astonishing lack of professionalism and civility that is worthy of special note." The court stated that the attorney had "abused the privilege of representing a witness in a Delaware proceeding" by being "extraordinarily rude, uncivil and vulgar."

Similarly, in Nachbaur v. American Transit Insurance, 752 N.Y.S.2d 605, 2002 N.Y. App. Div. LEXIS 12029 (1st Dept. 2002), New York courts drew the line when an attorney wrote a letter to the court in which he said his opposing counsel's manner of practicing law "indicates that she fits more as a clown in a circus than an attorney in a court of law." The appellate court upheld the trial court's imposition of sanctions and imposed further sanctions. Unsurprisingly, the attorney had previously been disbarred from the U.S. Supreme Court after filing a petition for certiorari that called the chief judge of the Second Circuit Court of Appeals "chief injustice."

More recently, and despite California's efforts to remind attorneys of their obligation to maintain civility and professionalism, the Second District Court of Appeal upheld terminating sanctions where the attorney, who was representing himself, threatened use of pepper spray and a Taser on opposing counsel and was openly contemptuous of the trial court. Crawford v. JPMorgan Chase Bank, 195 Cal. Rptr. 3d 868 (2015). The attorney's conduct was so egregious that the appellate court noted it would have been an abuse of discretion by the trial court not to impose a terminating sanction.

Protecting the profession and its reputation

The decisions of bar associations and state supreme courts make clear that the aspirational goals of integrity, professionalism and civility in the legal profession are worth more than occasional lip service as part of continuing legal education programs. One of the most widely reported examples of courts' efforts to protect the legal profession from unprofessional attorneys occurred in California.

Stephen Glass, the infamous "journalist" who filed false reports with "New Republic" magazine, attended law school as his scandal unfolded in the late 1990s. It was well reported that after he took the New York bar exam, he withdrew his application due to concerns that he would be denied admission based on the application's moral character component. This concern was based, in part, on his alleged misrepresentations regarding his cooperation with the "New Republic" and for submitting an incomplete list of fabricated articles that he had written.

Despite his "blemished" record, Glass later sought admission to the California bar. The California Supreme Court officially denied his application, noting that "he has not sustained his heavy burden of demonstrating rehabilitation and fitness for the practice of law." The court focused on the fact that Glass' former profession—journalism—also served the public and required a level of honesty, which Glass lacked. Further, the court found that once the scandal was uncovered, Glass did not admit his failings and come clean but sought to protect himself and continued to make misrepresentations. The court even found "hypocrisy and evasiveness" in Glass' testimony before the California State bar on these issues.

Notwithstanding his talent and commitment to the profession, the court ultimately found that the "duty to protect the public and maintain the integrity and high standards of the profession" weighed against Glass and prohibited the bar from permitting him to practice law on an independent, unsupervised basis.

Unlike the attorneys in the above cases, most attorneys uphold the level of professionalism and civility required as a member of the legal profession and come nowhere near crossing the proverbial line. At the same time, many attorneys are willing to share war stories about an opposing counsel who either crossed the line or came dangerously close. When dealing with such conduct, it is worth considering documenting the conduct and either bringing it to the court's attention or reporting it to the bar. After all, the court is only phone call away, and so is the bar. Let them do their part.

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